Olmstead v. City of Red Cloud

• Decision Date: 09 April 1910
• Docket Number: 15,936
• Citation: 125 N.W. 1101,86 Neb. 528
• Parties: CHARLES S. OLMSTEAD, APPELLEE, v. CITY OF RED CLOUD, APPELLANT
• Court: Nebraska Supreme Court

125 N.W. 1101

86 Neb. 528

CHARLES S. OLMSTEAD, APPELLEE, v. CITY OF RED CLOUD, APPELLANT

No. 15,936

Supreme Court of Nebraska

April 9, 1910

APPEAL from the district court for Webster county: HARRY S. DUNGAN JUDGE. Affirmed.

AFFIRMED.

L. H Blackledge, for appellant.

E. U Overman and J. S. Gilham, contra.

OPINION

ROSE, J.

In the city of Red Cloud, on the night of October 20, 1906, plaintiff fell down an open, unlighted stairway leading from a public sidewalk in a street to the basement of a private building and was severely injured. He subsequently sued the city for resulting damages for personal injuries on account of its negligence and recovered a verdict for $ 2,000. From a judgment in his favor for that sum defendant has appealed.

Plaintiff alleged in his petition that defendant was a city of the second class having less than 5,000 inhabitants, but at the trial did not adduce proof in support of that allegation. In addition to a general denial, the answer stated that defendant was a municipal corporation, but did not state the class of cities to which it belonged. The court gave an instruction which permitted plaintiff to recover without proof that defendant was a city of the second class having less than 5,000 inhabitants and without proof that he filed his claim with the city clerk before bringing suit. Defendant complains of this instruction, and its objections are summarized in its brief as follows: "This instruction was prejudicially erroneous because it assumed that the admission in the answer that the defendant was a municipal corporation relieved the plaintiff from the necessity of proving that the defendant city belonged to the class, or was of the population, alleged, and withdrew that issue, made by the pleadings and material in the case, from the jury. It was erroneous, also, because it omitted all question of notice, either actual or constructive, of the defect complained of."

The points are not well taken, for the following reasons: Proof that Red Cloud was a city of the second class having a population of less than 5,000 was unnecessary. The trial court was at liberty to take judicial notice of that fact and to frame its instructions to conform thereto. Hornberger v. State, 47 Neb. 40, 66 N.W. 23; Union P. R. Co. v. Montgomery, 49 Neb. 429, 68 N.W. 619. When plaintiff was injured, defendant's charter did not require him to file his claim with the city clerk, or give the city notice of his injuries, as a condition of his right to maintain his suit. Other statutes containing such requirements did not apply to the city of Red Cloud. Proof of actual notice of the dangerous stairway in the sidewalk was not essential to plaintiff's right to recover damages, because there was undisputed evidence that such a condition had existed for a length of time sufficient to charge the city with notice. City of Lincoln v. Smith, 28 Neb. 762, 45 N.W. 41.

Complaint is also made because the trial court failed to instruct the jury as to the burden of proof, the weight of evidence, and the credibility of witnesses. Defendant is not entitled to a reversal on this ground, for these reasons: After stating the issues raised by the material allegations of the pleadings, the trial court instructed the jury that the burden of proof was on plaintiff to convince them, by a fair preponderance of all the evidence, of the truth of every material allegation in his petition, before he could recover. Plaintiff's witnesses were not impeached nor their testimony contradicted. Defendant did not request instructions on those subjects, and there is nothing in the record to indicate that the jury took a wrong view of the law in relation to them. Under such circumstances it will be presumed defendant was willing to have the case submitted to the jury without such instructions, and it is now too late for complaint. Sanford v. Craig, 52 Neb. 483, 72 N.W. 864.

Error is also assigned in the giving of the following instruction: "The defendant in its answer alleges that the plaintiff was guilty of contributory negligence, in this: That plaintiff at the time of the injury was in an intoxicated condition, and that the injury was caused by reason of the condition of the plaintiff, and not being the result of any fault or negligence on the part of the defendant city. The defendant has offered no evidence in support of this allegation of its answer, and you will not consider it in arriving at your verdict." In the argument this instruction is challenged because it withdrew from the consideration of the jury the issue as to plaintiff's intoxication and consequent negligence. The instruction was properly given. The record contains no evidence whatever that plaintiff was intoxicated when injured, or at any other time, or that he ever drank intoxicating liquors of any kind.

Another argument is directed to assigned errors in the following instruction: "If you find from the evidence and these instructions that the plaintiff is entitled to recover, it will then be your duty to find and ascertain from the evidence the amount to which he is entitled. You should carefully consider all of the evidence as to the nature character, and extent of the injury, and the result, whether the disability, if...